U.S. v. Anderson

• Decision Date: 27 May 2008
• Docket Number: No. 07-5037.,07-5037.
• Citation: 526 F.3d 319
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donna ANDERSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

526 F.3d 319

UNITED STATES of America, Plaintiff-Appellee, v. Donna ANDERSON, Defendant-Appellant.

No. 07-5037.

United States Court of Appeals, Sixth Circuit.

Argued: March 21, 2008.

Decided and Filed: May 27, 2008.

ARGUED: Bryan H. Hoss, Davis & Hoss, Chattanooga, Tennessee, for Appellant. Scott A. Winne, Assistant United States Attorney, Chattanooga, Tennessee, for Appellee. ON BRIEF: Bryan H. Hoss, Davis & Hoss, Chattanooga, Tennessee, for Appellant. Gregg L. Sullivan, Assistant United States Attorney, Chattanooga, Tennessee, for Appellee.

Before: KENNEDY, BATCHELDER, and GRIFFIN, Circuit Judges.

KENNEDY, J., delivered the opinion of the court, in which GRIFFIN, J., joined. BATCHELDER, J. (p. 331), delivered a separate concurring opinion.

OPINION

KENNEDY, Circuit Judge.

Ms. Donna Anderson appeals her sentence imposed pursuant to her guilty plea for money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i) (2006). She alleges that her sentence is procedurally unreasonable because the district court incorrectly calculated her recommended Sentencing Guidelines range in at least three ways. First, she contends that the district court improperly used U.S. S.G. § 2 S 1.1(a)(1), instead of § 2 S 1.1(a)(2), to determine her base offense level. Section 2S 1.1(a)(1) calculates the base offense level based on the Guidelines section applicable to the underlying criminal conduct from which the laundered funds were derived. Subsection (a)(1) can only be used, however, when two conditions, which Ms. Anderson asserts are absent, are met, namely when the offender can be held responsible for the underlying offense and when the underlying offense's Guidelines recommendation can be calculated. Even if subsection (a)(1) was the correct subsection to apply, however, Ms. Anderson asserts that the district court improperly withheld a two-level safety valve reduction under § 2D 1.1(b)(7). Lastly, Ms. Anderson avers that if use of subsection (a)(1) was proper, then the two-level enhancement under § 2S1.1(b)(2)(B) was improper. The government concedes that the district court should have considered a two-level safety valve reduction, but otherwise opposes Ms. Anderson's arguments. Additionally, the government contends that the district court improperly granted Ms. Anderson a four-level reduction for a mitigating role pursuant to § 3B1.2(a). The government also suggests that notwithstanding these errors, Ms. Anderson should not be resentenced because the totality of the errors was harmless to the defendant. Because we find that, while use of § 2S1.1(a)(1) was proper, Ms. Anderson should have been considered for a two-level safety valve reduction pursuant to § 2D 1.1(b)(7) and should not have been granted a four-level minor participant reduction pursuant to § 3B 1.2(a), and that these errors were not harmless, we VACATE the district court's sentence and REMAND for resentencing consistent with this opinion.

BACKGROUND

On December 7, 2006, Ms. Donna Anderson was sentenced to a term of forty-eight months in prison for money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i), to which she had pleaded guilty. Ms. Anderson had been indicted for conspiracy to distribute five hundred or more grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), making a false statement in violation of 18 U.S.C. § 1001, laundering money with intent to promote the sale of illegal drugs, from which the money was obtained, in violation of 18 U.S.C. § 1956(a)(1)(A)(i), and laundering money that she knew represented the proceeds of illegal activity in violation of 18 U.S.C. § 1956(a)(1)(B)(i). Pursuant to a plea bargain, she pleaded guilty to the last charge, count twenty-three in the indictment, and the government agreed to dismiss the remaining charges.

Ms. Anderson's criminal involvement stems from the criminal conduct of her son, Dennis Anderson, a methamphetamine dealer. Dennis Anderson had been conducting a methamphetamine drug operation that involved individuals in the states of Georgia and Tennessee from at least January 2005 through September 1, 2005. During this time, he was dealing in at least five pounds of methamphetamine per week. For the thirty-five weeks of the conspiracy, then, Dennis Anderson purchased and/or sold roughly one-hundred-seventy-five pounds, or over seventy-nine and a quarter kilograms, of methamphetamine.

Ms. Anderson was aware that her son was a drug dealer, and she helped him conceal his illegal proceeds. Dennis Anderson gave Ms. Anderson $25,000 in cash, three boxed sets of coins, and two digital cameras to conceal. Ms. Anderson then had Ms. Alison Weathers, her sister, place these items in Ms. Weathers's safe deposit box. The purpose of this was to conceal that illegal activity, namely methamphetamine distribution, was the source of the items.

Ms. Anderson also assisted her son in concealing the fact that he had purchased a Lincoln Navigator for $8,500 in cash. Ms. Anderson had applied for the title to the vehicle and had the vehicle registered in her name.

Ms. Anderson also assisted her son in his drug trade. Mr. James Hixson, an officer in the Chattanooga Police Department assigned to the DEA task force, testified at the first sentencing hearing that two of Dennis Anderson's co-conspirators confirmed Ms. Anderson's participation in the conspiracy. Mr. Luke Wilson, one coconspirator, had stated that Dennis Anderson had used Ms. Anderson's house, which was Dennis Anderson's primary residence, while Ms. Anderson was present to conduct his methamphetamine business. Mr. Wilson also stated that when Dennis Anderson would receive shipments of drugs to Ms. Anderson's house, he would occasionally direct Ms. Anderson to retrieve money so that he could pay for the narcotics, which were in plain view.

Officer Hixson further testified that Mr. Clay Moerland, another co-conspirator, had also confirmed Ms. Anderson's assistance to Dennis Anderson. On one occasion, Mr. Moerland and Dennis Anderson had counted roughly $50-$60,000 in drug money and Dennis Anderson called Ms. Anderson to come pick up the cash, which she did. Mr. Moerland also stated that Ms. Anderson would occasionally deliver up to $20,000 to Dennis Anderson so that he could purchase drugs. Lastly, Mr. Moerland asserted that Ms. Anderson would occasionally be given guns to store by Dennis Anderson. When police searched a storage unit rented by Ms. Anderson, they discovered three stolen rifles.

In sentencing Ms. Anderson, the district court determined that U.S.S.G. § 2S1.1(a)(1), and not (a)(2), provided the appropriate test by which to calculate Ms. Anderson's base level. This conclusion was based primarily on the district court's determination that Ms. Anderson "must be held responsible for what [she] did t[o] further[ ] the drug-trafficking activities." J.A. at 154-55. Section 2S1.1(a)(1) was appropriate, it stated, because it determines the base level for the money laundering offense by reference to the offense level for the underlying conduct, and therefore takes account of the defendant's responsibility for the underlying criminal activity.

The district court, pursuant to § 2S1.1(a)(1), referenced § 2D1.1 to obtain Ms. Anderson's base offense level. Section 2D1.1 determines offense levels based on the amount of narcotics for which the defendant is responsible. To determine that quantity of narcotics, the district court asked Officer Hixson to estimate "the minimal amount of drugs which the defendant could reasonably have foreseen that Denn[is] Anderson was involved with over the time period that [Officer Hixson] believed [Ms. Anderson] was involved." J.A. at 116. Officer Hixson testified that the "minimum figure would be an estimated 3 pounds." J.A. at 116. The district court found by a preponderance of the evidence that this figure was a conservative estimate of the amount of methamphetamine that Ms. Anderson could have reasonably foreseen based upon her participation in the drug conspiracy. Based upon this figure, the district court found, from the Drug Quantity Table in § 2D1.1, that the base level offense was thirty-two, which is applicable when the defendant is responsible for 500 grams to 1.5 kilograms of methamphetamine.

The district court determined a few adjustments should apply to Ms. Anderson's offense level. As a general matter, it found that the specific offense characteristics from § 2S 1.1 should be used, rather than any specific offense characteristics from § 2D1.1. The district court, therefore, found that Ms. Anderson's offense level should be increased by two, bringing the offense level to thirty-four, pursuant to § 2S 1.1(b)(2)(B). The district court then reduced the offense level by four, pursuant to § 3B1.2(a), because it found that Ms. Anderson played a minimal role in the offense. The district court further reduced the offense level by three, pursuant to § 3E1.1, for Ms. Anderson's acceptance of responsibility. The adjusted offense level, therefore, was twenty-five.

The district court then determined that a departure was warranted. The government had made a § 5K1.1 motion based upon Ms. Anderson's substantial assistance to the government. The district court granted the government's motion for a downward departure, and therefore reduced Ms. Anderson's offense level from twenty-five to twenty-two. The offense level combined with a Criminal History Category of I resulted in a Guidelines recommendation of a sentence between forty-one to fifty-one months. The district court found that, based upon the Guidelines recommendation and the sentencing factors in 18 U.S.C. § 3553(a), a sufficient sentence for Ms. Anderson was forty-eight months in prison.

ANALYSIS

Ms. Anderson challenges the procedural reasonableness of her sentence. She argues that the district court incorrectly calculated the Guidelines' recommendation because § 2S1.1(a)(1), rather than (a)(2), should have been used to determine the base...